The Label Is Wrong

Several media outlets recently reported on a Gallup poll finding that forty-three percent of Americans think the current Supreme Court is “too conservative.” Excuse me, but that finding is an example of a fundamental misperception that infests current American debates, and keeps our political arguments unilluminating and unproductive.

The current Supreme Court is many things, but conservative is certainly not one of them. Indeed, some of the most trenchant criticisms of the entirely corrupt Court majority have come from jurists and scholars with unimpeachably conservative bona fides. For example, J. Michael Luttig–a conservative icon  and former judge who consistently issued very conservative opinions when he was on the bench– called the Court’s bestowal of immunity for “official acts” of the President “irreconcilable with America’s democracy, the Constitution, and the rule of law.” Legal scholars, including a number of conservatives, have argued that decisions rendered by the current majority break with centuries of understanding, lack textual support, and undermine accountability.

Several conservatives have warned that the Court is legitimizing a “kingship” rather than a presidency. 

The Court’s unprecedented use of the Shadow Docket–historically a mechanism reserved for matters requiring an urgent response–has drawn criticism from across the ideological spectrum. The Court’s majority has used the Docket to issue decisions that lack the sort of legal analysis that lower courts rely upon for guidance, and has issued those decisions without the benefit of briefing or argumentation, lending credibility to the impression that they are operating via prejudice rather than analysis.

In a string of unexplained decisions utterly inconsistent with precedent, the majority has eroded the independence of previously independent agencies and commissions. It has allowed Trump to withhold funds appropriated by Congress, despite the fact that the Constitution explicitly and exclusively grants funding decisions to the legislative branch. It has overturned the longstanding deference of the judicial branch to agency understandings of their own regulations, empowering judges to determine highly technical matters; the majority’s “religious liberty” decisions have significantly eroded the First Amendment’s separation of church and state in favor of a performative and illiberal Christianity, and–perhaps most shocking of all– it has allowed ICE to ignore the probable cause requirement of the Fourth Amendment.

The list goes on.

Words have meanings, or at least they should. A truly conservative Court follows–conserves–legal precedent unless faced with formidable evidence that the precedent is no longer consistent with modern realities. Stare decisis and respect for legal predictability have long been lodestars of the judiciary, including–indeed, especially–conservative members of that judiciary. Evidence of such respect is nowhere to be seen in the Roberts Court; for years, Clarence Thomas has signaled his desire to overturn decisions with which he personally disagrees, and Samuel Alito gave a metaphorical finger to both individual liberty and fifty years of precedent when he authored the Dobbs decision.

Conservatism has been defined as a philosophy of preservation and prudence; conservatives value continuity, social stability, and gradual evolution rather than radical change. Conservatives prioritize respect for institutions, the rule of law and moral and cultural traditions. In contrast, reactionary far right ideologies are fixated on a desire to “reclaim” a mythic past. Reactionaries reject checks and balances; they embrace nativism and define belonging in racial and religious terms rather than civic ones, and they detest the pluralism that defines today’s America.

 

Where conservatism sees order as compatible with liberty, reactionary and populist far-right movements define order as the suppression of difference.

 

The problem with labeling our reactionary Court as conservative is that such a label obscures reality. It’s akin to the misuse of other labels like Left-wing and socialism, but it’s arguably more dangerous, because it makes a very real threat–an ahistorical judicial deviation from the rule of law in favor of a very unAmerican authoritarianism– seem like a normal part of America’s ever-shifting political environment. We’ve always had courts and political parties that are properly understood to be more conservative or more liberal, but by mis-labeling this radical Supreme Court as “conservative,” we minimize the extent to which it has deviated from the political and constitutional norms to which both liberal and genuinely conservative courts have adhered.

 

If this Court was truly conservative, America wouldn’t be in the midst of an authoritarian coup.

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it’s The Structure, Stupid!

A reader recently sent me a link to an article from Governing with a provocative title suggesting that the current crisis with democracy should be blamed on the states. The article pointed to a variety of problems that this blog and many others have frequently addressed, including the Electoral College, gerrymandering and vote suppression, and the structure of the Senate.

Despite the article’s title, the problems identified in the article can’t fairly be attributed to the states, although some of them (gerrymandering and vote suppression, certainly) are activities conducted by the states. The very real problems the article enumerates–and a couple it doesn’t–are more properly designated as structural. 

One of the problems with a population that is largely civically-ignorant is the widespread belief that we just need to elect the “right” people who support the “right” policies, and longstanding issues will be resolved. Very few Americans recognize the structural roots of our dysfunctions, and consequently, there are few, if any, efforts to address them.

The linked article identifies several of these structural impediments to a genuinely democratic system–defined as a system truly reflecting the will of the voting populace. I’m well aware that there are a number of scholars and pundits who are unenthusiastic, to say the least, about such a system; they remind us that the Founders were leery of “the people” and created impediments to what they characterized as mass prejudices and popular passions. (Indeed, the Bill of Rights is correctly identified as a counter-majoritarian document.) Most Americans today, however, give at least lip service to the notion that a democratic system, in which elected officials act in ways that reflect the expressed will of the majority, is the ideal.

We don’t currently have such a system, and as the linked article reminds us, the constitutional prerogatives of the states in our federalist system are largely to blame.

Consider all the ways states serve to frustrate the will of the people. First, the Electoral College, which votes state by state, has already installed five presidents whom the voters had rejected nationwide. The many additional near misses make frequent future recurrences a statistical certainty.

The U.S. Senate is even more counter-majoritarian. As of 2023, a majority of the U.S. population is clustered in states that together get only 18 of the 100 senators. The minority get the other 82.

We can blame the Founders for the Electoral College, but the clustering of the population is a more recent demographic reality–and even more damaging. That said, even among the Founders there were those who failed to understand why their “states’ rights” colleagues insisted on the equality of states, which were, after all, artificial creations, rather than the equality of the people who lived in them. As the article reminds us, Federalists like James Madison were bitterly opposed to what they saw as a grossly undemocratic Senate. “Ultimately, however, they accepted the proffered compromise (equally populated House districts, plus states as Senate districts), but only as an unavoidable concession to get the required nine state ratifications.”

One result of this empowerment of states rather than people has been a gradual shift of voting power to rural inhabitants at the expense of urban Americans. (One study found that a rural vote counts one and a third compared to a vote cast by a city dweller.)

As the article reminds us, states have used their prerogatives to suppress votes and–in states that allow initiatives–to overrule the results of popular votes. (In Indiana, which lacks a referendum or initiative, no rational observer would suggest that majority members of our legislature even try to reflect the will of the people.)

Making matters worse, in the U.S., changing structural defects is incredibly difficult.  That’s why the effort to eliminate the Electoral College is through an interstate compact rather than a Constitutional amendment. As the article reminds us, the U.S. Constitution has been described as the hardest in the world to amend.

It requires a two-thirds vote in both chambers of Congress, followed by ratification by three-quarters of the state legislatures (or a constitutional convention process that has never been used).

Winning a two-thirds vote in the already counter-majoritarian Senate is hard enough, but ratification by the states can be harder still. Only recently, states that represented just 22 percent of the U.S. population were able to block the Equal Rights Amendment, against the wishes of states representing the other 78 percent.

If and when we emerge from our current descent into fascism and autocracy, we need to address the structural issues that have facilitated that descent–including a thorough revamping of the Supreme Court.

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Why We Must Resist

In a recent newsletter, Simon Rosenberg summed it all up.

First, let’s talk about Trump. That he is a wrecking ball, in clear physical and cognitive decline, and a wanna be dictator – not a President – has become impossible to ignore. In just a few months he has re-ignited inflation, slowed the economy, exploded the deficit, torched our alliances and damaged America’s standing throughout world. He is wrecking our health care system, attacking our world leading scientific and medical research centers, laying siege to the farm economy, throwing innocent people into foreign gulags without due process, invading our cities, recklessly walking away from the global consensus on climate change, leading an extraordinary coverup of a prolific sex trafficker and pedophile, enriching himself and his courtiers, and is now using the government to lawlessly pursue and silence his domestic opposition.

America under Trump has become less prosperous, less safe, less healthy, and less free, a far weaker nation. His regime represents a profound and historic betrayal of America and everything that has made us great, and the most powerful nation in history. All of this has also made him extraordinarily unpopular as the American people wake up to the destruction he is causing, wake up to that he really is pursuing an agenda of “more for me, less for you” now.

For sentient Americans, that summary is impossible to rebut. The obvious question, however, is: what can genuine patriots do about it? How can ordinary citizens who are horrified by the daily news (much of which might be introduced under the heading “what fresh hell is this?”) resist? More to the point, how can we come together to create a mass resistance movement?

I wish I had a snappy answer to that question. I don’t. But I do believe that massive participation in the upcoming No Kings protests will be essential. We need to turn out many millions of Americans who are ready and willing to send a. message of non-compliance, who publicly reject the lawlessness and the utter stupidity of the bigots who currently control the government–and not just in Washington, but in Red state capitols like Indianapolis.

Survey research tells us two things: one hopeful, one depressing. It’s hopeful that polling uniformly shows that a majority of Americans loath Trump and oppose virtually everything his administration is doing. It’s depressing that the minority is so large–depending upon the poll, somewhere between 37% and 42% of us still approve of him.

It’s hard for me to get my head around the fact that so many of our neighbors are perfectly willing to support a lawless and increasingly vicious regime, willing to ignore or excuse or even support the reality of the summary with which I opened this post. Many of them, no doubt, are unaware of much of it–they live in bubbles, getting their “information” from Fox and multiple other propaganda sites. To the extent that they are aware, they are evidently supportive of what they see as an exchange of constitutional civic equality for the White Christian male dominance they would prefer.

Historians tell us that the effort to turn America into a Christian theocracy–an effort summarized and documented in Project 2025– began decades ago. Normal Americans have largely been unaware of that effort as they’ve gone about their daily lives.  It’s understandable that the majority are only now waking to the magnitude of the threat. (The pace of that recognition has actually been abetted by the sheer buffoonery and incompetence of the Trump administration.) 

There are a number of signs, large and small, that the majority is finding its voice: the increasing number of spontaneous protests; the huge Jimmy Kimmel response; the efforts by lower court judges to hold the constitutional line and protect the rule of law… and the fact that Amazon is selling lots of pre-made protest signs, suggesting there’s a substantial market.

In the future, it may be necessary to mount massive boycotts of the companies bending the knee to our wanna-be autocrats. It may be necessary to participate in a national strike, or take other measures to resist the destruction of the America most of us love. But right now, No Kings Day is our vehicle, and we need to ensure that it demonstrates an enormous resistance by millions of citizens ready, willing and able to retake our country.

See you on OCTOBER 18TH.

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Teams Versus Tribes

I generally hate sports metaphors, but sometimes they are too apt to ignore, so bear with me…

I recently had a conversation with a friend who–like me–remembered the “old” days of politics, when Republicans and Democrats differed on some issues and agreed on others, and when those conversations and debates were about policy.

When I served in Indianapolis’ City Hall (I know, a zillion years ago), city leaders often met with the state legislators elected from Indianapolis. Some were Republican, some Democrat, and while they reflected the priorities of their opposing caucuses on most issues, they frequently came together to support the priorities of the city. They worked with the Mayor on initiatives that would be good for Indianapolis.

Back in that day, Republicans and Democrats were two teams. The thing about teams is that they are playing the same game and obeying the same rules. That political “game” was governing, and the goal was to score policies that benefited your constituency. (Yes, both teams had players who were all about themselves, or in the pocket of some moneyed interest, or embarrassingly dumb, but those were the exceptions. The majority really did care about legislating policies they believed were sound, even if they disagreed about what those policies were.)

Those days are over.

Over the intervening years, the “Red team”–the Republican team I played on back then–has morphed into a tribal cult. Its more liberal, moderate and thoughtful members have been ejected, leaving virtually everyone unwilling to accept the new tribal identity without a team. Some of us became Democrats, others, disenfranchised Independents.

The problem with that change from teams to tribes should be obvious. While teams are competing to win the same game, tribes aren’t interested in either competition or the game–instead, they are intent upon clearing the playing field of those despised “others.” Rather than engaging in policy debates–the “game”–or concerning themselves with issues of governance, they are focused on defeating those not in their. tribe. They are intent upon establishing dominance.

In other words, today’s tribal folks aren’t interested in governing or in the relative merits of policy A or B–their goal is much simpler: to own the “libruls” and put those uppity Blacks, women and gays back in their proper, submissive place.

Historically, tribal bonds were crucial for survival. Membership in a tribe offered deep psychological and social connections, and contributed to  human well-being and achievement. However, as we are seeing, the persistence of strong group loyalties based upon identity can foster extreme attitudes, undermine democratic principles, and inculcate an “us versus them” worldview that is deeply corrosive. When tribes are based upon racial and religious homogeneity, rather than common values and aspirations, there is no middle ground.

So here we are.

The White “Christian” Nationalist tribe that has “evolved” from the once-respectable GOP is uninterested in anything but regaining social and political dominance. They are unconcerned with the Trump administration’s destruction of our federal government and its flouting of the constitutional rules of the game and unperturbed by Trump’s embarrassing and damaging international antics– because governing in the national interest isn’t the “game” they’re playing. The tribe believes that making America “great” means putting them in charge.

It’s no wonder the Democrats are at odds over how to proceed in this new environment. Most Democratic politicians still think of themselves as members of a team that is concerned first and foremost with matters of public policy, and they’re ill-equipped to face opponents whose “policy” preferences are limited to eradicating opponents and establishing White “Christian” Nationalist dominance.

I have no idea how we extricate the country from this mismatch. If this sports analogy is right, pious exhortations to find “common ground” are unrealistic, to put it mildly. Americans will simply have to choose between the team and the tribe.

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Feeling No Shame

I keep thinking about the question that led to the downfall of McCarthy and McCarthyism–at long last, sir, have you no sense of decency?

I doubt that Donald Trump could spell decency, much less define it, but I think there’s another, related question we might pose–although we know the answer: at long last, sir, have you no sense of shame?

I recently looked into the concept of shame and its social utility. It turns out that the ability to feel shame is an essential element of what psychologists and psychiatrists call “pro-social behavior.” It prevents people from damaging their social relationships and reputations, and it warns one of social ostracism or disapproval. Feelings of shame motivate individuals to conform to group norms and expectations, and that helps members of a society function cooperatively.

Although shame can also be toxic, in its healthy form it serves as a natural mechanism for self-control and social regulation, and promotes a shared sense of values and expectations for behavior.  

As we learn daily, Donald Trump and his cast of incompetent clowns and sycophants are incapable of feeling shame or even of experiencing its dimmer cousin, embarrassment. In the wake of one of the most recent exhibitions of Trump’s detachment from reality, Lincoln Square ran an article bemoaning the fact that Trump isn’t simply embarrassing himself, he’s embarrassing America.

The author of that article, Kristoffer Ealy, wrote,

Every time I see a headline or a YouTube video that says, “Trump embarrasses himself by…” it irks me a little. Not because Trump doesn’t make a fool of himself — he always does — but because is it even possible for him to get embarrassed? Embarrassment requires self-awareness. It requires an understanding of social standards, the recognition that you’ve fallen short of them, and the capacity to cringe at yourself.

Trump doesn’t express any of these traits. He barrels through life like a man who believes the world is his open mic, and the crowd is obligated to applaud no matter how stale the jokes are. Embarrassment implies an internal governor that makes you stop and think, “Oh, maybe I shouldn’t have said that.” Trump is missing that chip. He is an indictment on the United States of America, and not just as a president but as a mirror of the worst parts of us — anti-intellectualism, cruelty as entertainment, and the delusion that bluster equals brilliance.

Ealy wasn’t even writing about the latest embarrassment–Trump’s rambling and incredibly inappropriate speech to an assembly of American military leaders. He was reacting to the equally senile and unselfaware word-salad delivered to representatives at the United Nations, which he characterized as “bad improv with nuclear weapons.”

The first gem was his declaration that other nations are going to hell. That’s not analysis; that’s Shao Kahn from Mortal Kombat mixed with Jimmy Swaggart. If the goal was to sound like a dictator moonlighting as a televangelist, mission accomplished. He said it with the same flourish that Swaggart used to beg for donations, except instead of promising salvation he was predicting damnation. Imagine sitting in that room as a world leader and hearing the U.S. president channel both an arcade boss fight and a disgraced preacher. That’s not foreign policy—it’s fan fiction written by a crank.

Then came his insistence that climate change is a hoax. This is where roasting almost feels too easy, because it’s not just dumb — it’s dangerous. Trump is proof of how far the Republican Party has fallen. I would never call George W. Bush a champion for climate action, but even Bush had the baseline sense to acknowledge that climate change exists. 

That embarrassing performance has been eclipsed by the more recent–and more shameful–display to America’s military leadership. (The overall reaction to both Trump and Hegseth was summed up in an Atlantic headline: “Hundreds of Generals Try to Keep a Straight Face.”)

Trump’s obvious inability to understand when he is making a fool of himself, his utter imperviousness to feelings of shame or embarrassment, are indicators–according to the psychiatric literature–of psychological conditions like narcissism and psychopathy. An inability to feel shame also accompanies a lack of empathy and a lack of self-awareness.

That lack of self-awareness must also be a characteristic of Trump voters, who evidently view his ongoing clown show and decline with equanimity, and seem perfectly okay with his demonstrable inability to govern, not to mention his destruction of America’s global status…

They’re shameful.

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